Unjust enrichment and damages in intellectual property law

In civil law, a distinction is made between general civil law and special private law. Whilst the general civil law provides rules governing relations between citizens in more universal terms, special private law contains provisions departing from these civil law rules. The justifications given for such departures are that the general civil law does not provide appropriate solutions for certain specific issues. Classic examples are the fields of consumer protection and employment law. Similarly, the law of intellectual property (IP) codifies special private law norms in cases in which an unauthorised party interferes with an IP right. These norms depart substantially from the rules of general civil law. The present treatise analyses these special rules in terms of their relationship with the general civil law. Proceeding from that analysis, the article also examines the relationship between the general civil law and special private law at a fundamental level. Underlying the present analysis is the authors conviction according to the principle of justice special private law should be in accord with the general civil law. It is true that special private law may depart from the general civil law, but such departures should nevertheless be justifiable in terms of general civil law principles, so that the civil law as a whole is coherent. In this respect, this treatise follows the view of civil law theorists, whose emphasis on systematic consistency causes them to treat the special private law with a certain degree of suspicion. Their critique has given rise to battle lines between the civil law and IP law: On one side of the battlefield, one finds the civil law, which insists on a coherent universal system of law. On the other side, one finds IP law, which seeks pragmatic solutions for specific IP problems, and which considers coherent universality to be of secondary concern. The present treatise takes up this discourse and synthesises IPs focus on (seemingly?) specific needs with the civil laws quest for coherence of the overall legal system. It is based on the assumption that special rules are frequently due to a real need to find legal norms. This need becomes particularly salient within a given special area of the law, but it is nevertheless susceptible to generalisation in broader terms. A special or exceptional rule can be a fact that requires to formulate a universal rule to cover a general problem. Viewed in this light, special private law does not primarily represent a threat, but rather it represents an opportunity for further development of a coherent universal system of law.